In re Estate of the Late Mbui (Succession Cause 988 of 2013) [2026] KEHC 3428 (KLR) (20 February 2026) (Ruling) Neutral citation: [2026] KEHC 3428 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KERUGOYA SUCCESSION CAUSE 988 OF 2013 EM MURIITHI, J FEBRUARY 20, 2026 IN THE MATTER OF THE ESTATE OF THE LATE MBURIA MBUI BETWEEN MARY WANJIRU REUBEN .................................................................. PETITIONER AND SICILLY KABARI MBURIA ............................................................ 1ST PROTESTOR PATRICK MWANGI MBURIA ...................................................... 2ND PROTESTOR RULING 1. The estate of the deceased is a parcel of land 5 acres in size. The deceased died in 1996. 2. On the evidence, the deceased had two house-holds, one wife Warui Mburia who had two (2) children with the Deceased and is herself deceased. On the death of the first wife, the Deceased had remarried. The second wife, Sicily Kabare, had three (3) children. The first wife pre-deceased the deceased herein. 3. There is no dispute that the 3 children of the second wife are entitled to inherit as the deceased accepted them as his children upon marriage with the second wife. The dispute centres on equitable versus equal distribution between the houses. See Rono v Rono (2005) 1 EA 365. 4. The applicant seeks distribution of his estate equally between the 2 houses urging that it is in accordance with customs, and in consideration of the goodwill on her part in recognizing the children of the protestor/second wife who were not biological children of the deceased the Court should distribute the estate according to the houses each getting 2 ½ acres each. 5. However, it is not on the good will of the Petitioner that the children of the 2nd wife depend for their inheritance from the deceased’s estate. The Law of Succession Act defines “child” to include “in relation to a male person, any child whom he has expressly recognized or in fact accepted as a child of his own or for whom he has voluntarily assumed permanent responsibility”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3428/eng@2026-02-20 1
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The children of Sicily Kabari are entitled to inherit the estate as “children” of the deceased and Warui Mburia house is a “house” defined in section 3 of the Law of Succession Act, as follows: “ "house" means a family unit comprising a wife, whether alive or dead at the date of the death of the husband and the children of that wife”. 6. On the evidence before this Court, the estate of the deceased falls to be distributed in accordance with section 40 of the Law of Succession Act applicable to cases of polygamous marriage, with children of the deceased – whether biological or by recognition/acceptance/responsibility surviving the deceased. By the head/marginal note, section 40 is a provision “where intestate was polygamous”. With this distribution, it appears that sections 35 and 36 appear to apply to situation where the intestate was monogamous. Orders 7. Accordingly, for the reasons set out above, the Court will allow the distribution of the estate into six (6) equal parts, in terms of section 40 of Law of Succession Act to achieve equitable distribution. Order accordingly. DATED AND DELIVERED THIS 20TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mutegi for Ms. A. Thungu for the petitioner. Mr. Mwagiru for Mr. Kagio for the Protestor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3428/eng@2026-02-20 2
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